The rusty gears driving our current constitutional crisis ratcheted another step forward on Tuesday night as the House select committee investigating the Jan. 6 insurrection finally cracked down on (one) GOP official flagrantly defying its demands for documents and testimony.
A bipartisan majority of committee lawmakers agreed that former Trump administration body-hider and World of Warcraft goldfarmer Steve Bannon was in contempt of his subpoena, a fact Bannon himself will gladly tell you. With a full vote in the House certain to pass, Attorney General Merrick Garland will soon be legally required to bring Bannon’s charges before a grand jury.
But referring Bannon for prosecution won’t solve the Jan. 6 committee’s struggle to compel testimony from powerful Republicans who reject both the committee’s legitimacy and, more broadly, Joe Biden’s. Restoring Congress’ role as a coequal branch of government will require reclaiming years of legal powers delegated to an ever more expansive presidency — and resulting in a president who felt powerful enough to stage a failed coup.
If Congress does rediscover the courage of its convictions and the Justice Department succeeds in convicting Bannon, the former Breitbart boss and self-described “Leninist” who’s raved against the “administrative state” and boasted about “flooding the zone with shit” just might end up being the unlikely, and accidental, hero who helps restore the balance of powers our democracy needs to sustain itself after an era of imperial presidencies.
It’s clear that Bannon—who wasn’t even an administration official, having already been fired by Trump—and defiant Trump officials merit prosecution for their contempt. What remains frustratingly unclear is whether Democrats, who have so far struggled this year to deliver victories on broadly popular issues, have the political courage to wade into prosecutions that will ignite the right and likely inflame an already divided nation.
Bannon, who Trump pardoned in the last hours of his presidency, is in hot water again after his laughable attempt to invoke Trump administration executive privilege fell flat for one very good reason: Trump has simply declined to shield Bannon at all.
"The Select Committee has not been provided with any formal invocation of executive privilege by the President, the former President or any other employee of the executive branch," reads the official contempt report issued by the select committee. And even if Trump did try to protect his crony, “[E]xecutive privilege does not extend to discussions between the President and private citizens relating to non-governmental business or among private citizens."
Without any remotely credible defense for his evasion, the Department of Justice would be hard-pressed to find an excuse to avoid its legal duty to refer Bannon’s case to a grand jury. But the problem runs deeper: even “cooperative” Republicans have undermined congressional authority without fear of consequences.
Even when Republican officials do voluntarily comply with congressional subpoenas, officials have largely spent their time making a mockery of the fact-finding process. In 2019, Trump campaign manager Corey Lewandowski spent most of his time before the House Judiciary Committee’s impeachment panel antagonizing Democrats and pointedly refusing to cooperate. Lewandowski’s circus was catnip for right-wing media outlets happy to reinforce the idea that congressional investigations carried no real weight.
In moving to fine and potentially jail Bannon, Congress is invoking a power it has not used in nearly a century. This Congress is also far weaker than the one that in the 1920s arrested and detained the Attorney General’s brother for failing to testify in President Warren Harding’s sprawling Teapot Dome oil scandal. Most of that weakness has been self-inflicted, but by trolling Congress until it remembered its authority, Bannon may be solidifying the very institution he aims to undercut.
“There is no conceivably applicable privilege that could shield Mr. Bannon from testimony,” committee vice chair Rep. Liz Cheney said, arguing the decision to charge Bannon “will set a precedent not just for this investigation but for all congressional investigations.”
Committee members have tough work ahead to restore the esteem and authority that once surrounded congressional investigations. In 2019, Harvard legal scholars Professor Noah Feldman, Mark Tushnet and other leading academics discussed the concept of “presidential power surges,” one way of describing the 80-plus years of growing presidential power that kicked into overdrive during and after World War II. Over the decades, we’ve flipped on its head a system originally intended to empower Congress and limit presidents. As a result, once-respected congressional investigative power is now regarded as bad theater.
“In reality, the problem goes well beyond Trump, and even beyond the well-documented trend of increasing presidential power,” international relations experts James Goldgeier and Elizabeth N. Saunders write in Foreign Policy. “Constraints on the president… have been eroding for decades. Constraints are like muscles: once atrophied, they require bulking up before the competitor can get back in the game.”
How the Jan. 6 select committee handles even tougher cases of defiance — especially within Trump’s inner circle — will determine whether, regardless of what the law says, Congress still possesses the functional ability to investigate an immensely powerful executive branch. For a body so out of shape in exercising its powers of investigation and accountability, a coup facilitated by senior government officials is like running an ultramarathon without practicing once.
The Biden administration made the select committee’s harrowing job slightly easier by refusing to invoke executive privilege on a trove of Trump administration documents. That decision was made easier thanks to Biden and Trump representing different political parties, but historically the preservation of executive power has often mattered more to sitting presidents than political identifiers. In this rare instance, Biden moved the clock back a few minutes.
The White House, regardless of party, has a vested interest in keeping Congress weak and its investigations symbolic. Congress should not expect many more charity cases like Biden’s waiving of limited executive privilege — lawmakers must be prepared to enforce its traditional powers and pass laws where necessary to further reaffirm the seriousness and legitimacy of congressional investigations and, more importantly, the ability of lawmakers to compel cooperation.
Unfortunately for American democracy, this is not a drill. The coup attempt that may see Bannon sent to jail really happened, and many of the GOP’s most powerful officials are cheering each other on to defy any attempt to uncover the truth. Bannon’s criminal referral offers hope that Congress is finally tired of being ignored.
Historians write heartbreaking studies of moments like this, when great nations faced existential challenges and failed, through arrogance or apathy, to secure their institutions. Congress has in the January 6 select committee an exceedingly rare chance to reclaim authority sapped away by decades of expanding presidential power. Enforcing their subpoenas is an encouraging first step.